United States v. Jason Brion Angiulo, United States of America v. John Carmen Cincotti, United States of America v. William Joseph Kazonis, United States of America v. John Carmen Cincotti, William Joseph Kazonis, Jason Brion Angiulo

Citation: 847 F.2d 956Docket: 87-1745

Court: Court of Appeals for the First Circuit; July 6, 1988; Federal Appellate Court

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Consolidated appeals were filed by defendants Jason Brion Angiulo, William Joseph Kazonis, and John Carmen Cincotti after their convictions stemming from a 58-day trial related to organized crime activities associated with the Patriarca Family of La Cosa Nostra. Angiulo was convicted for illegal gambling under 18 U.S.C. § 1955, Kazonis for conspiracy and obstruction of justice under 18 U.S.C. §§ 371 and 1503, and Cincotti for racketeering conspiracy and illegal gambling under 18 U.S.C. § 1962(d) and § 1955.

The prosecution relied heavily on evidence from extensive electronic surveillance conducted in 1981 at two locations in Boston: the headquarters of Gennaro Angiulo, Jason’s father, and a venue for high-stakes poker games affiliated with Cincotti. Search warrants executed by the FBI yielded additional physical evidence against Cincotti. The jury found that Cincotti managed high-stakes poker games at 51 North Margin Street, where substantial betting occurred, and that he recorded gambling debts and negotiated credit terms with players. 

The appeals were heard by the First Circuit Court of Appeals, with decisions rendered on May 24, 1988. Rehearing requests were denied on July 6, 1988.

A partnership that included Gennaro Angiulo and Ilario Zannino owned the gambling operation at 51 North Margin Street. Evidence at trial included a recorded conversation indicating that Cincotti managed the gambling profits. On May 18, 1981, FBI agents executed search warrants at this location during active poker games, seizing gambling equipment and $9,500 in cash from Cincotti, alongside documentation of debts totaling over $56,000 and a notebook listing credit extensions to players. Additionally, recorded conversations revealed Cincotti's involvement in a conspiracy to murder Harvey Cohen, a competitor of the Patriarca Family, and his awareness of past murders linked to the Family.

Between 1979 and 1981, Jason Angiulo ran a gambling operation named 'Las Vegas Nights,' falsely claiming to benefit charitable organizations. Testimonies indicated that signatures for event permits were forged, the gambling was not managed by the charities, and the organizations often received little or nothing from the proceeds. Intercepted conversations during early 1981 showed Jason Angiulo discussing profit distribution with his father, Gennaro Angiulo.

Evidence from recordings on March 24 and 25, 1981, indicated that William Kazonis conspired with Gennaro Angiulo to obstruct a grand jury investigation into these activities. Gennaro Angiulo expressed concern about Walter LaFreniere, who was subpoenaed regarding loansharking activities. Although LaFreniere intended to invoke the Fifth Amendment, Angiulo sought assurances from LaFreniere's attorney to ensure he would not cooperate with the investigation. Further recordings revealed Angiulo's plan to have LaFreniere murdered if he did not comply.

LaFreniere was informed by the FBI of a murder contract on his life. On March 24, 1981, defendants Kazonis and Jason Angiulo met with Gennaro Angiulo, where Kazonis revealed LaFreniere's intention to refuse testimony and accept jail time instead. Gennaro Angiulo directed Jason Angiulo to provide false testimony before the grand jury and discussed the potential consequences of being caught lying. He instructed Kazonis to persuade LaFreniere to avoid testifying and go to jail for contempt instead. Kazonis later assured Gennaro that LaFreniere had been advised to remain silent, with the maximum contempt sentence being 18 months. 

On April 1, 1981, LaFreniere was granted immunity to testify before the grand jury, but on April 2, he received further instructions from Gennaro and Cintolo to not communicate with authorities if arrested for contempt. After a delay due to Cintolo's disqualification, LaFreniere appeared before the grand jury on April 23, 1981, and refused to testify, leading to his contempt charge and an 18-month prison sentence beginning June 2. 

The defendants, including Cincotti, raised multiple issues on appeal, with Cincotti's arguments concerning his RICO charges. Cincotti faced conspiracy charges under the Racketeer Influenced and Corrupt Organizations Act (RICO) for participating in an enterprise associated with the Patriarca Family and engaging in racketeering activities, including a conspiracy to murder Harvey Cohen and operating an illegal gambling business. The government detailed in the indictment the nature of the enterprise and Cincotti's involvement in unlawful debt collection related to gambling activities.

Count II incorporates all allegations from Count I, asserting them as violations of 18 U.S.C. § 1962(c). Mid-trial, the government amended its indictment, omitting references to co-defendants who had pled guilty; however, the allegations in both the original and redacted indictments remained unchanged. Cincotti moved to dismiss the redacted indictment, claiming it included substantive changes that violated his Fifth Amendment right to a grand jury indictment, but the district court denied this motion. After the government rested its case, Cincotti sought a judgment of acquittal, arguing that RICO violations could not apply to the Patriarca Family based on a prior ruling in United States v. Turkette, which was later reversed by the Supreme Court. Cincotti contended that a conviction would violate his due process rights due to ex post facto implications, but the district court denied this request as well. The jury ultimately convicted Cincotti of both RICO conspiracy and the substantive RICO violation.

Cincotti now claims the district court erred in denying his motions to dismiss the indictment and for judgment of acquittal, arguing insufficient evidence for his substantive RICO conviction. He contends that the removal of a specific 'overt act' in the redacted indictment constituted a substantive change, infringing on his constitutional rights. The court reviews the elements required for a valid RICO conspiracy charge, which include the existence of an enterprise, the defendant’s knowing participation, and the agreement to commit two or more predicate crimes. Additionally, an agreement or actual collection of unlawful debts can fulfill the third necessary element for a RICO conspiracy charge.

The document clarifies that the commission of 'overt acts' is not necessary for a RICO conspiracy conviction, aligning with other circuit rulings. The court emphasizes that Section 1962(d) does not mandate such a requirement, and the existing standards sufficiently inform defendants about the nature of the conspiracy. In Cincotti's case, the government maintained the same allegations in the amended indictment as in the original, which included elements such as the existence of an enterprise, Cincotti's participation, and his agreement to commit specific predicate crimes. The removal of the 'overt act' allegation from the indictment was permissible as it did not alter the core charges and merely eliminated a redundant claim not supported by evidence, thus respecting Cincotti's rights under grand jury indictment requirements.

Cincotti also argues that his due process rights were violated because he was convicted based on a judicial interpretation of RICO that he claims was unforeseeable and retroactive. He references a prior decision, United States v. Turkette, which held that RICO does not apply to wholly illegal enterprises, asserting that his involvement with the Patriarca Family, a criminal organization, should not constitute grounds for a RICO conviction. Although the Supreme Court later reversed the interpretation of 'enterprise' under RICO, Cincotti contends that applying this ruling retroactively violates his due process rights. The government presents various counterarguments to challenge Cincotti's assertions regarding due process.

The case differs significantly from Bouie v. City of Columbia, where African Americans were arrested for criminal trespass in a restaurant without posted signs prohibiting their entry. The Supreme Court of South Carolina upheld their convictions by interpreting a statute in a way that expanded its meaning unexpectedly. The U.S. Supreme Court ruled that such unforeseeable judicial expansion deprived defendants of due process, as they had no fair warning that their actions were criminal.

In contrast, the principles established in Bouie cannot be applied to the current case. The Supreme Court clarified in its decision reversing Turkette that the term "enterprise" in 18 U.S.C. § 1961(4) clearly encompasses illegal enterprises and that the legislative history provides no contrary interpretation. The Court refused to apply the rule of lenity, indicating the term was not ambiguous enough to exempt the defendant from retroactive application of the ruling. Unlike Bouie, where the statute's narrow language could not have been foreseen as criminalizing the defendants' actions, the definition of "enterprise" in the RICO statute was well established and unambiguous, meaning individuals could not justifiably assume their actions were noncriminal based on a potential limiting construction.

Cincotti argues for the reversal of his conviction for substantive RICO violations or, alternatively, for a new trial on the grounds of insufficient evidence. The court evaluates all evidence, favoring the government. To prove the RICO violation, the government could either show Cincotti's involvement in two predicate offenses or his collection of unlawful debts, along with evidence that these actions supported the Patriarca Family's operations. The indictment included conspiracy to murder Harvey Cohen and operating an illegal gambling business as the two predicate offenses. While Cincotti does not dispute the evidence for the illegal gambling charge, he claims insufficient proof regarding his involvement in the murder conspiracy and debt collection.

The court finds sufficient evidence for both claims. FBI Agent Rafferty testified he identified Cincotti's voice from intercepted tapes, which were played to the jury. Additionally, videotape evidence confirmed Cincotti's presence at the location during the relevant conversations. The recorded discussions included direct references to plans to kill Cohen, providing adequate grounds for the jury to conclude Cincotti participated in the conspiracy.

The jury had the opportunity to assess the evidence, which demonstrated Cincotti's involvement in the murder scheme. The combination of the illegal gambling conviction and sufficient evidence of conspiracy to murder Cohen fulfills the requirement for two predicate acts for the RICO conviction. The court also addresses Cincotti's challenge regarding the evidence for the government’s claim about unlawful debt collection related to gambling operations.

Cincotti asserts that the government's evidence merely demonstrates his general involvement in gambling at 51 North Margin Street without specific proof of 'unlawful debt' under the RICO statute. He claims that the evidence reflects settling debts after poker games, not the intent of Congress regarding RICO. However, it is argued that the definition of 'unlawful debt' encompasses gambling debts from illegal poker games, supported by intercepted conversations and search warrant evidence. The jury could reasonably conclude that Cincotti was involved in extending credit and collecting debts for the gambling operation, which contributed to the interests of the Patriarca Family, justifying his conviction under 18 U.S.C. § 1962(c). 

In a related case, defendants Angiulo and Kazonis were acquitted of substantive RICO charges but found guilty of operating an illegal gambling business and obstructing justice, respectively. They raise several appeal issues, including alleged errors in the district court's 'Petrozziello findings' regarding their involvement in the RICO conspiracy, claims of unfair trial due to prejudicial evidence, challenges to the admission of expert witness testimony about their connections to the Patriarca Family, procedural grievances concerning electronic surveillance, and assertions of Fifth Amendment violations regarding jury selection. The appeal addresses these issues and related sub-issues, particularly focusing on the admissibility of intercepted conversations regarding murder plans tied to the Patriarca Family under the co-conspirator hearsay rule.

Defendants argue that the district court incorrectly applied the evidentiary standards established in United States v. Petrozziello by admitting statements related to past and future murder plans as evidence of their involvement in a RICO conspiracy. The court conducted a pre-jury hearing and determined that the government had sufficiently demonstrated that the statements were made to further the conspiracy, and that defendants Angiulo and Kazonis, having committed predicate acts for the Patriarca Family, were part of that conspiracy. 

While the defendants do not dispute their membership in the RICO conspiracy, they claim there is no evidence they were aware that the conspiracy involved murder. However, established law indicates that joining a conspiracy implies acceptance of prior acts and declarations by co-conspirators. Thus, a conspirator can be held accountable for statements related to conspiracy objectives, even without specific knowledge of the details.

The defendants further assert that the murder-related conversations were irrelevant to the charges against them and that the district court failed to provide adequate jury instructions to prevent consideration of this evidence in relation to non-RICO offenses, resulting in "evidentiary spillover" that compromised their right to a fair trial. The district court ruled that the murder discussions were admissible to establish motive, intent, or design regarding the RICO conspiracy and other charges. The court instructed the jury to consider the co-conspirator statements without limitations for the RICO charges but imposed specific limitations for the non-RICO charges, detailing how to compartmentalize the evidence.

When evaluating co-conspirator statements made in the absence of a defendant for Counts 3, 4, 5, 7, and 8, the jury may consider such statements solely to assess the defendant's intent, motive, or state of mind, but not as evidence of participation in the charged offenses unless the statements specifically relate to both the offense charged and the defendant's involvement in that offense. The jury was permitted to consider co-conspirator statements in determining Kazonis's guilt for conspiracy to obstruct justice (Count 6) without limitations; however, for the illegal gambling counts (Counts 4 and 5) and substantive obstruction of justice counts (Counts 7 and 8), they could only factor in these statements concerning the defendants' mental states. The district court instructed the jury to assess each charge against each defendant separately.

Concerns arose regarding the court’s instruction that allowed the jury to consider co-conspirator statements relevant to other conspiracies, such as plans to murder Harvey Cohen, when determining Kazonis's involvement in the separate conspiracy to obstruct justice. Despite this potential issue, the jury's mixed verdicts indicated they could effectively differentiate between the evidence relevant to the various charges, suggesting that the lack of a further limiting instruction did not adversely affect Kazonis's case.

The jury's consideration of alleged RICO co-conspirators' statements did not affect Kazonis's conviction for substantive obstruction of justice (Count 7), as sufficient evidence supported the jury's finding that Kazonis obstructed justice by interfering with LaFreniere's grand jury appearance. For Kazonis to be convicted of conspiring to obstruct justice, it was necessary only to establish that he agreed with others to commit the offense, which was supported by substantial evidence independent of the co-conspirators' statements. The district court's error in allowing broad consideration of these statements was deemed harmless beyond a reasonable doubt, following precedents that require a showing of substantial influence on the jury's verdict for reversal.

Regarding the substantive charges against Angiulo and Kazonis (Counts 5 and 7), the jury could consider co-conspirator statements to assess defendants' intent, motive, or state of mind. Such statements, particularly those of the Patriarca Family members, were relevant to demonstrate the consequences for non-cooperation and the violent methods employed by the Family. The district court found that both defendants were associated with the Family and committed acts in furtherance of its interests. However, the relevance of these statements could be diminished if there was no evidence showing that Kazonis and Angiulo had actual knowledge of their contents, especially given the potentially prejudicial nature of discussions involving murder.

The court's instruction limited the jury's consideration of co-conspirator statements to those made in the presence of the specific defendant and related to the offense charged. For Angiulo, statements about murder plans made outside his presence and unrelated to his illegal gambling charge were deemed non-probative. The instruction guided the jury to exclude these statements when assessing Angiulo's participation in the gambling offense, and the court found no prejudicial error in this approach. In Kazonis's case, evidence of violent practices within the Patriarca Family was relevant to his intent regarding obstruction of justice, particularly concerning LaFreniere's testimony. However, the jury was instructed not to consider murder plans unrelated to Kazonis. The court properly outlined the elements needed to convict Kazonis for obstruction, and there was sufficient evidence for conviction without referencing murder plans. Additionally, the government presented FBI Agent James Nelson as an expert witness on La Cosa Nostra's structure and the defendants' relationships to the organization. Angiulo and Kazonis challenged the admissibility of Nelson's testimony, citing potential violations of their Sixth Amendment rights and arguing that the testimony encroached on jury responsibilities. Each of these contentions was addressed by the court.

Defendants argued that Agent Nelson's testimony, which did not disclose the identities of informants, violated Rule 705 of the Federal Rules of Evidence by hindering their ability to cross-examine and assess the credibility of the witness, thus infringing upon their Sixth Amendment rights. They initially objected to the testimony but accepted a court instruction limiting Agent Nelson from answering questions based on undisclosed informant information. The defendants contended that this instruction inadequately protected their rights, as it allowed Agent Nelson to decide which opinions were based on disclosed versus undisclosed sources, potentially concealing contradictory information.

The court found no merit in the defendants' claims, noting that Agent Nelson's opinion regarding their association with the Patriarca Family was solely based on tape recordings presented at trial, not on undisclosed informants. The defendants were afforded ample opportunity to cross-examine Agent Nelson about his opinions and the factual bases for them. The court concluded that Agent Nelson’s testimony complied with Rule 705 and did not violate the Confrontation Clause.

Additionally, the defendants argued that Agent Nelson's testimony was inadmissible under Rule 702 for failing to assist the jury and under Rule 704(b) for providing impermissible expert opinion on their intent. The court rejected these claims, clarifying that Rule 704(b) did not apply since Agent Nelson did not opine on the defendants' mental states but rather on their associations as indicated by tape evidence. The court acknowledged the potential prejudicial impact of law enforcement expert testimony but affirmed its usefulness in elucidating organized criminal activity, granting district courts broad discretion regarding the admissibility of such evidence.

Expert testimony, such as that provided by Agent Nelson, is crucial in cases involving complex criminal organizations, aiding juries in understanding the organization's structure and the defendants' connections, as illustrated by recorded conversations. The district court appropriately admitted Agent Nelson's testimony under Rule 702. 

Defendants Angiulo and Kazonis challenged the government's electronic surveillance, claiming violations of the Omnibus Crime Control and Safe Streets Act regarding wiretapping. They sought to suppress tape recordings made at 98 Prince Street and 51 North Margin Street. The district court denied these motions, and it was determined that the defendants lacked standing to contest recordings from 51 North Margin Street, leading to a focus on the 98 Prince Street recordings.

The surveillance at 98 Prince Street lasted from January 19 to May 3, 1981. On April 10, 1981, the court authorized the use of intercepted conversations for prosecuting unspecified offenses, including RICO charges. Although the government did not create duplicate originals of all recordings, copies were made. The original tapes were sealed according to legal requirements after the surveillance period ended. However, the government requested unsealing the original tapes on three occasions for audio enhancement due to issues with background noise in the copies.

The government, under judicial order, transported and enhanced tape recordings in Washington, D.C., subsequently sealing them again upon returning to court. After a grand jury indictment, defendants Angiulo, Kazonis, and others moved to suppress these recordings, claiming violations of 18 U.S.C. § 2518(8)(a) regarding sealing requirements, § 2518(5) for failing to minimize interceptions outside authorized surveillance, and § 2517(5) prohibiting the disclosure of unrelated intercepted conversations. The defendants appealed the district court's denial of their suppression motion.

The issue of the circumstances under which the government may unseal recordings sealed under § 2518(8)(a) is novel and has not been addressed in other circuits. This section mandates the protection of recordings from alterations and requires immediate sealing after the expiration of surveillance orders. The presence of a seal is necessary for the use or disclosure of these recordings.

In United States v. Mora, the court established that failure to immediately seal recordings necessitates suppression unless the government provides clear evidence of a satisfactory explanation for the delay, demonstrating that the integrity of the tapes was maintained and that the delay was in good faith without prejudice to the accused. The district court's decision not to suppress the tapes occurred before the Mora ruling, and the court believed that precedent from other circuits regarding sealing delays did not apply to unsealing orders.

Congress did not explicitly address the issue of unsealing tapes, but courts possess the inherent authority to order unsealing when good cause is demonstrated. The district court dismissed the defendants' claim that unsealing automatically necessitated the suppression of the tapes. The court emphasized that while unsealing should not be routine, it should be permitted at the court's discretion for valid reasons. Although the unsealing process poses risks, such as potential alteration of tapes, the court noted that proper procedures, such as those outlined in section 2518(8)(a), are crucial for maintaining the integrity of evidence. The standards from United States v. Mora apply to unsealing cases, necessitating that the government prove both the absence of alteration and the legitimacy of the unsealing circumstances to avoid prejudice to the defendants. In this instance, the district court confirmed that the government demonstrated good cause for the temporary unsealing, supported by thorough examination of the agents involved, which established the integrity of the tapes and the security measures in place. Additionally, there were no signs of bad faith or undue delays in returning the tapes after enhancement. The defendants also contended that the tapes should have been excluded due to violations of section 2518(5), which mandates the minimization of intercepted communications during surveillance.

The practice of intermittently activating recording equipment—two minutes on followed by one minute off—failed to meet the "minimization" requirement of section 2518(5) of the statute. The government’s early interception of noncriminal conversations was cited as evidence of this violation. However, the district court's analysis was upheld, referencing that section 2518(5) does not prohibit all interception of nonrelevant conversations but mandates minimizing such interceptions. Determining compliance is contingent upon the reasonableness of agents' conduct based on the specifics of each case. 

Three critical factors are considered to assess whether minimization requirements were satisfied: 1) the nature and complexity of the alleged criminal activities, 2) prior information available to the government to filter out irrelevant conversations, and 3) the level of judicial oversight during the surveillance. 

In this instance, the government’s surveillance at 98 Prince Street was deemed compliant. The criminal activities under investigation were intricate and involved multiple parties, justifying broader surveillance to ascertain the full scope. Additionally, during the initial surveillance phases, agents faced challenges in determining the relevance of conversations due to their complexity and specialized language used, making continuous monitoring reasonable at that stage. The defendants' claims primarily related to these early interceptions, which were deemed necessary for identifying relevant criminal activity.

The intermittent monitoring technique employed by agents was deemed a reasonable method for "spot-checking" conversations, ensuring that any discussions relevant to the surveillance authorization were captured without violating minimization requirements. The district court affirmed that regular five-day progress reports submitted by monitoring agents to the overseeing judge contributed to compliance with these requirements, establishing judicial oversight as a safeguard for agents' conduct.

The defense's argument for suppressing tapes due to the interception of conversations related to RICO violations—outside the original surveillance scope—was addressed. The government sought permission under 18 U.S.C. § 2517(5) to use this evidence for prosecution, and a different district court judge granted this request. The standards for such disclosure emphasize that evidence from unauthorized offenses can be retroactively approved if the initial wiretap was lawfully obtained and executed in good faith.

The defendants contended that the government had intended to intercept RICO-related conversations from the outset and that these were not merely incidentally intercepted. However, the court found no merit in these claims, supporting the district court's determination that the surveillance application was not a subterfuge.

Even if the disclosure of intercepted conversations related to "other crimes" was deemed improper, the convictions of defendants Angiulo and Kazonis would still be upheld. The government affirmed that all interceptions relevant to their convictions were properly authorized by the district court, while the unauthorized interceptions cited by the defendants were RICO-related, for which they were not convicted. The court found that any potential impact from introducing evidence of RICO violations at trial was harmless. Therefore, even if the conversations intercepted at 98 Prince Street were excluded, the convictions would remain intact.

During the trial, the defendants sought to compel government agents to reveal the locations of microphones used for surveillance at 98 Prince Street. The government asserted a qualified privilege to withhold this information, citing concerns that revealing surveillance techniques could compromise future investigations. The trial judge upheld this privilege and instructed the jury that they could draw reasonable inferences regarding the defendants' participation based on the absence of specific evidence about the microphone locations.

After the trial, articles in the Boston Globe reported details of the investigation, including descriptions of how FBI agents installed microphones above ceiling tiles at 98 Prince Street, emphasizing the careful placement and secrecy surrounding the surveillance equipment. The articles highlighted the FBI's intent to maintain operational security to avoid detection by the Angiulo organization.

The risk of needing to frequently replace drained power units in an apartment was deemed less significant than the risk of unauthorized leaks. Following their convictions, defendants Angiulo and Kazonis sought a new trial, arguing that certain articles constituted newly discovered evidence and that the government's refusal to disclose microphone locations was in bad faith, violating their rights to cross-examine government witnesses. The district court denied their motion and request for an evidentiary hearing, stating that the government held a qualified privilege not to disclose the microphone locations, as established in United States v. Cintolo. The court noted that the defendants had opportunities to challenge the government's case without this disclosure, including presenting evidence about the apartment's size and the jury's viewing of the location, which allowed them to argue their defense effectively. The court concluded that alternative means were available to the defendants for raising reasonable doubt and that the jury instructions adequately addressed the absence of microphone location evidence, affirming the government's privilege.

Defendants argue that articles from the Boston Globe represent newly discovered evidence that justifies a new trial. They claim that the government's assertion of privilege was made in bad faith, evidenced by the FBI's later disclosures to the press regarding surveillance details at 98 Prince Street, which they contend were not confidential. The defendants believe that had they received this information during the trial, they could have pinpointed the locations of the microphones and effectively countered the government's implications of their involvement in incriminating conversations.

The district court, considering the defense affidavits without valid evidentiary objections, found insufficient evidence to support claims of government bad faith. It noted that the Globe's reports could be speculative rather than factual. Furthermore, even if bad faith were demonstrated, the defendants did not show how they were prejudiced by the absence of the information from the articles during the trial.

Motions for new trials are subject to the trial court's discretion, and the denial of such motions is typically upheld unless there is an abuse of discretion. The court affirmed that the defendants did not establish that the newly discovered evidence would likely lead to an acquittal. Given the defense's ability to argue their case and the jury's instructions regarding the lack of evidence about microphone locations, the court concluded that knowledge of these locations would not have materially benefitted the defendants. Consequently, the district court's denial of the motion for a new trial was affirmed.

Angiulo and Kazonis argue that the government's use of peremptory challenges to exclude black jurors and jurors with Italian-American names violated their equal protection rights under the Supreme Court's ruling in Batson v. Kentucky. The prosecution eliminated 2 out of 4 black jurors and 4 out of 7 jurors with Italian-American sounding names from the jury pool. The defendants contended that this exclusion was based on race and national origin. However, the district judge found that the government provided sufficient non-racial reasons for its peremptory challenges, leading the defendants to claim they established a prima facie case of discrimination.

The court dismissed the defendants' claims, stating that Angiulo and Kazonis, not being black, could not assert discrimination regarding the exclusion of black jurors. Additionally, they failed to demonstrate that Italian-Americans faced discriminatory treatment, thus not meeting the Batson requirement of proving membership in a "cognizable" group. Even if a prima facie case had been established, the district court deemed the government's reasons for excluding Italian-American jurors as "objectively reasonable" and provided sufficient neutral explanations, which were not clearly erroneous. Consequently, the district court properly rejected the defendants' objections to the peremptory challenges. 

Furthermore, Angiulo's separate challenge to the admissibility of expert testimony from the Massachusetts State Lottery Commission's general counsel regarding gambling laws was not preserved for appeal, and no plain error was found.

The jury's finding of Gennaro Angiulo guilty of operating an illegal gambling business is upheld based on the evidence favoring the government. Angiulo and Ilario Zannino, both separately convicted of related conspiracy crimes, are not parties to this appeal. William Cintolo faced a separate indictment for obstruction of justice, which was affirmed on appeal. Richard Gambale and Peter Limone, indicted alongside the defendants, pleaded guilty to obstruction of justice.

Under 18 U.S.C. § 1962(c), it is unlawful for anyone associated with an enterprise affecting interstate commerce to participate in its affairs through racketeering or unlawful debt collection. The conspiracy provision under § 1962(d) prohibits conspiring to violate the provisions of subsections (a), (b), or (c). An "enterprise" includes any legal entity or group, while a "pattern of racketeering activity" requires at least two acts committed within ten years, one after the enactment of RICO. Acts constituting racketeering include gambling offenses punishable by imprisonment for over a year.

An "unlawful debt" is defined as a debt incurred through illegal gambling or under usurious conditions. The alleged conspiracy to murder Harvey Cohen may serve as a predicate offense for the RICO conspiracy. The trial's failure to prove the voice identification of Cincotti related to an eliminated overt act regarding debt collection is noted. The Turkette case was ultimately reversed by the Supreme Court following a certiorari grant.

Cincotti was indicted for RICO predicate offenses, specifically conspiracy to murder Harvey Cohen in April 1981 and operating an illegal gambling business from October 20, 1980, to May 18, 1981. The trial evidence confirmed these dates, indicating that the criminal activities took place between the appellate court's decision in Turkette and the Supreme Court's subsequent reversal. Notably, most activities occurred after the Supreme Court granted certiorari, raising questions about Cincotti's reasonable reliance on the Turkette decision as a definitive interpretation of RICO. The government pointed out that there was no evidence showing Cincotti relied on the Turkette ruling, which weakened his due process argument against retroactive application of the Supreme Court's decision.

Cincotti contended that the jury should have favored the testimony of Carolyn Kingston, his voice therapist, over Agent Rafferty's. However, Kingston admitted she had never spoken directly to Cincotti and could not provide testimony regarding his voice characteristics. The district court instructed the jury to ensure that the government proved the voice identifications related to the intercepted conversations.

Cincotti did not contest the sufficiency of the evidence regarding the existence of the RICO enterprise or the predicate acts he allegedly committed. The court ruled that the defendants, including Jason Brion Angiulo and William Kazonis, were members of the RICO conspiracy associated with the Patriarca Family of La Cosa Nostra. The court found sufficient evidence to conclude that each defendant had committed substantive crimes in furtherance of the RICO conspiracy, demonstrating awareness of the organization's illegal activities and its capacity for extreme measures, including murder, to protect its interests. The defendants objected to these findings.

The jury acquitted Angiulo and Kazonis of conspiracy charges; however, this did not imply that the district court erred in finding their participation in the RICO conspiracy, allowing for the admissibility of evidence under Rule 801(d)(2)(E). The district court's Petrozziello finding was supported by a preponderance of the evidence, while the RICO convictions required proof beyond a reasonable doubt. The defendants contended that the jury should have been instructed to disregard co-conspirator statements irrelevant to the specific predicate offenses against them. Although they accepted a limiting instruction provided by the court, they preserved their challenge for review.

Kazonis specifically could not object to the inclusion of statements about plans to murder Walter LaFreniere in relation to his guilt under Count 6. The indictment alleged Kazonis conspired to obstruct justice, which included the agreement to kill LaFreniere. The district court found, by a preponderance of the evidence, that Kazonis was part of this conspiracy, making those statements admissible against him. Kazonis's argument that his involvement did not encompass murder plans was rejected, as the statements from co-conspirators who did plan the murder were relevant to the conspiracy charge. The jury instructions focused on whether Kazonis intended to obstruct justice through unlawful means, and there was sufficient evidence for his conviction without reliance on murder-related statements. Kazonis was charged with substantive obstruction of justice and Angiulo with operating an illegal gambling business, both as predicate offenses for the RICO counts and separate offenses.

The district court's decision to admit certain statements under Rule 801(d)(2)(E) was justified due to the interconnected nature of the offenses and predicate acts related to the RICO conspiracy involving Kazonis and Angiulo. No co-conspirator statements regarding murders were admitted that implicated Angiulo's operations in Las Vegas Nights. Agent Nelson provided testimony on the hierarchy within the Patriarca Family, identifying Raymond Patriarca as the "boss," Gerry Angiulo as the "underboss," Nicolas Angiulo as "consigliere," and John Cincotti as a "soldier." He classified Jason Angiulo and William Kazonis as close "associates." Defendants contended that Agent Nelson's insights into collateral relationships required access to confidential informants, but the record indicated he based his opinions on non-confidential sources. According to Rule 702, expert witnesses may offer opinions if they assist the trier of fact, while Rule 704(b) prohibits experts from opining on a defendant's mental state as it pertains to the crime. The defendants sought evidentiary hearings primarily regarding alleged statutory violations concerning minimization and sealing but did not formally request a hearing in relation to the disclosure order, leading to the district court's denial of an evidentiary hearing on the minimization issue.

The general authorization-for-use statute regarding intercepted communications allows individuals who lawfully receive information from wire, oral, or electronic communications to disclose that information during testimony in legal proceedings. Both prosecution and defense may seek to unseal original tape recordings for various reasons, such as verifying duplicate recordings or checking for inadvertent erasures. Although the government successfully established the integrity of the tapes, challenges to witness credibility necessitate minimizing alteration doubts by keeping untouched originals sealed or making simultaneous recordings. 

The district court found that monitoring agents maintained detailed logs of intercepted communications, which included dates, times, and participant identities. The agents conducted daily reviews and submitted progress reports to a supervising judge, ceasing monitoring when only non-criminal discussions were noted. The defendants did not contest these factual findings but challenged the district court's legal conclusions, arguing for an evidentiary hearing on minimization issues. However, the court denied this request due to a lack of specific factual allegations supporting their claim. 

Additionally, Section 2517(5) permits the disclosure or use of intercepted communications relating to offenses not specified in the authorization order, as outlined in prior subsections.

Contents and evidence derived from intercepted communications may be utilized when authorized by a judge, provided the judge determines the interception complied with legal standards. The government received authorization to intercept communications related to illegal gambling on January 9, 1981, and subsequent interceptions linked to this charge occurred on January 20, 21, and in March 1981. All intercepted communications relevant to Angiulo's conviction were deemed fully authorized. Additionally, the government obtained authorization for interceptions concerning conspiracy to obstruct law enforcement on February 6, 1981, and for related obstruction of justice offenses on April 3, 1981. Tape recordings used against Kazonis for obstruction of justice were intercepted on March 24 and 25, 1981. Kazonis did not contest the propriety of the disclosure order for these conversations and there was no evidence suggesting improper interception methods. The conversations were sufficiently connected to the surveillance of 98 Prince Street, justifying their use in prosecution. Kazonis noted an interpretation discrepancy in a conversation involving Angiulo but did not provide separate arguments for his case, merely adopting Kazonis's arguments.

Defendants claim the Boston Globe's report on March 19, 1981, indicating that microphones were positioned over Gennaro Angiulo and Richard Gambale, implies that the FBI leaked this information to the press. They argue that had they known this during the trial, they could have cross-examined Angiulo regarding his whereabouts to establish the microphones' exact location. Additionally, they challenge the jury selection process, citing issues such as a juror providing misleading statements, another responding in a dismissive manner, and a third being struck due to potential distractions from her recent move and childcare responsibilities. The defendants assert that these factors violated their Sixth Amendment right to an impartial jury. However, their argument regarding the removal of jurors with Italian-American names fails because they do not demonstrate those jurors were actually part of the Italian-American community relevant to the case, undermining their claim.